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Legislation Cited: Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss 10, 17, 89 Firearms Act 1996 (ACT), ss 6, 7, 43, 249, Sch 1 Prohibited Weapons Act 1996 (ACT), ss 4A, 5, Sch 1

Cases Cited: Mack v The Queen [2009] NSWCCA 216 R v Hogan [2014] ACTSC 254 R v Massey [2018] ACTSC 221 R v Mitchell [2016] ACTSC 85 R v Okwechime [2015] ACTSC 129 R v Taylor [2015] ACTSC 122 Shumack v Lyddiard [2007] ACTCA 3 Smith-Roberts v Alexander [2014] ACTSC 239

Parties: The Queen (Crown) Peter Zdravkovic (Offender)

Representation: Counsel P Dixon (Crown) J Moffett (Offender)

Solicitors Act Director of Public Prosecutions (Crown) Sharman Robertson (Offender)

File Numbers: SCC 302 of 2018 SCC 304 of 2018

MOSSOP J:

Introduction

1. The offender, Peter Zdravkovic, was found guilty by a jury of two charges:

(a) possessing an unauthorised firearm contrary to s 43(1)(a)(iii) of the Firearms Act 1996 (ACT) (CC2018/9987), the maximum penalty for which is imprisonment for five years; and

(b) possessing an unauthorised prohibited weapon contrary to s 5 of the Prohibited Weapons Act 1996 (ACT) (CC2018/9989), the maximum penalty for which is 500 penalty units, imprisonment for five years or both.

2. I also found him guilty of a transfer charge of unauthorised possession of ammunition contrary to s 249 of the Firearms Act (CC2018/9988), the maximum penalty for which is 10 penalty units.

3. The items the subject of the charges were a Sako rifle, a pair of bladed knuckledusters and four rounds of .270 ammunition suited for use in the Sako rifle.

Facts

4. The circumstances in which the offending occurred are as follows. The offender is the former president or commander of the Comanchero outlaw motorcycle gang. In February or March 2018 disputes within that gang led to him ceasing to be a member. At about that time, he publicly disclosed that he had burnt his “colours”, the leather jacket and insignia associated with being a member of the gang. Within the culture of the gang, that step was taken to be a provocative one.

5. On the evening of 17 March 2018 intruders came to his home. There was a fight. He received a gunshot wound to his scalp. Neither he nor his fiancée reported this to police.

6. On 6 June 2018 police attended his home and had a discussion with him relating to the recent arrest of Alexander Miller, a senior member of the Comancheros. Mr Miller had been arrested in possession of a firearm the previous day. Prior to his arrest, Mr Miller had been observed by police driving on the street where the offender lived.

7. On 28 June 2018 a number of men, whose appearances were concealed, entered onto the offender’s property at about 10:35pm. They doused his three cars with an accelerant. They fired shots through the rear glass sliding door of the house. The offender, who had just got out of the shower and was naked, returned fire using the rifle. There was an exchange of fire, the attackers having a pistol and a shotgun, and the offender having a rifle. After a number of shots were fired, the intruders left the premises via the carport, igniting the accelerant and hence the vehicles as they left. The offender ran shouting from the premises in the direction that the intruders had left but retreated from the flames and went back into the house.

8. Following the incident, the fire brigade, police and an ambulance attended the premises. Police established a crime scene. Subsequently a search warrant was issued in relation to the premises. During the course of the search of the premises, on 30 June 2018 officers found the items the subject of the charges:

(a) the Sako rifle was found in the roof cavity above an access hatch in the ceiling of the laundry;

(b) the bladed knuckledusters were found in a cupboard in a shed on the property; and

(c) the ammunition was found hidden in a rubber glove which itself was placed inside a structural metal beam in the roof of the same shed.

9. Prior to the discovery of the rifle, the offender had a conversation with a police officer in which he disclosed that he had shot back at the intruders. When asked by the police officer to disclose the location of the rifle, the offender declined to do so.

Objective seriousness

10. Section 43 of the Firearms Act relates to unauthorised possession or use of firearms other than prohibited firearms. The relevant part of that section relates to possession or use of one or two firearms. Clearly, in this case the offence is limited to possession rather than use and involves one rather than two firearms. Some of the other factors of relevance to assessing the objective seriousness of the offence are those referred to in Mack v The Queen [2009] NSWCCA 216 which were picked up in R v Mitchell [2016] ACTSC 85 (Mitchell) at [85]. The nature of the firearm is such that it is at the more serious end of the scale when regard is had to both the definition of “firearm” in s 6 and those items which would be categorised as prohibited firearms by s 7 and Sch 1. That it was possessed by the offender for the purposes of self-defence in the context of the fallout from his departure from the Comancheros makes the offending more serious, but not as serious as would be the case if it was demonstrated that it was possessed with an intention to use it for offensive purposes. The firearm was stored in a manner that meant that neither his family nor members of the public had ready access to it. It was not loaded. Although he had been in possession of it since at least 28 June 2018, there was no evidence as to how much longer he had possessed the weapon or the circumstances in which it came into his possession. Taking these matters into account, I assess the objective seriousness as being in the mid range of objective seriousness for this offence.

11. Section 5 of the Prohibited Weapons Act covers both possession and use of prohibited weapons. In this case, the offence involved bare possession of the item. The nature of the items which may be the subject of this offence are described, inter alia, in s 4A and Sch 1 of the Act. It extends from butterfly knives and laser pointers to bombs, flamethrowers and missiles. Bladed knuckledusters such as these would fall into the less serious type of weapons within Sch 1. The evidence does not permit any particular finding as to the offender’s intention in relation to their use. Taking these matters into account, the offending is in the low to mid range of objective seriousness for this offence.

12. Section 249 of the Firearms Act covers possession of any quantity of ammunition for a firearm. The possession of four bullets for a rifle is a small quantity of ammunition. The intention of the accused in relation to the ammunition is the same as in relation to the rifle. This offending is at the low end of the range of objective seriousness for this offence. Subjective circumstances

13. The personal circumstances of the offender are outlined in a court duty pre-sentence report dated 22 September 2020, as well as in a number of references.

14. The pre-sentence report discloses the following. He is the only child of his mother and father but grew up in a blended family with four siblings. His parents emigrated to Australia from the former Yugoslavia. He identifies culturally as Serbian. He reported a strict upbringing involving corporal punishment. He completed Year 12 of formal education. After high school he worked in his father’s business as a concreter and subsequently started his own concreting business. He has operated that business for the past eight years and earns a reasonable income from that.

15. He has a positive relationship with each of his parents. He has a partner with whom he has a five-year-old son.

16. He commenced using amphetamines in his 20s. Since 2013, as a result of his involvement with the Comancheros, he had been smoking methamphetamines daily. He denied any use of illicit drugs within the past 12 months.

17. He denied any current involvement with antisocial associates indicating, consistent with the evidence, that he had ceased membership of the Comancheros. The author of the pre-sentence report states that “The offender acknowledged the difficulty associated with a resignation from such gangs; however, appeared focused on the best outcomes for his son and family”.

18. So far as his attitude to the offending is concerned, the pre-sentence report states:

The offender confirmed prior receipt and perusal of the case statement attendant to the matters currently before the Court, and did not dispute the facts. He advised, however, that the knuckledusters were, in his opinion, a decorative collector’s item. Mr Zdravkovic acknowledged that he was unlawfully in possession of the weapons outlined within the case statement, and acknowledged the potential for personal and community grief as a result of this.

19. He was assessed as not suitable for community service work because of his serious criminal record including a history of weapons-related offences.

20. He has spent two days in custody in relation to the offending. He has also spent a substantial period subject to bail conditions that included a curfew between August 2018 and June 2020.

21. References were tendered from a friend and business associate of the offender, the parish priest of the Serbian Orthodox Church at Wallaroo and a long-term friend of the offender. All of these are very positive about the personal attributes of the offender. However, in the present context, they are less useful than they might otherwise be as they do not acknowledge the offender’s involvement with the Comancheros and nor do they attempt to reconcile the person that they describe with his past leadership role in an outlaw motorcycle gang. As a consequence, they do not provide much insight into the offender’s prospects of permanently leaving behind the conduct and attitude to the law that is associated with such an organisation.

22. In contrast, the references provided by his father and his partner are very useful. The reference provided by his father provides a detailed description of the offender’s family circumstances. His father demonstrates considerable insight into his own failings as a father and how that might have affected the offender during his upbringing. He says that being a military police officer, he always had the mindset of discipline. He accepts that he was very strict and was physically abusive towards the offender and can now see how that has had a very big impact upon the offender. He describes the offender’s upbringing, the role of his grandmother in looking after him when his parents worked extremely hard to establish themselves in Australia, his success competing as a wrestler at a high level and his success in soccer. He also describes how the offender’s life got out of control when he started hanging around with people who were not good influences upon him. He describes the offender joining the Comancheros and the inability of his father to pull the offender away from that lifestyle. He also describes the very positive influence that the offender’s current partner and child have had upon him.

23. The reference from his current partner describes the role that the offender plays in relation to his son and family more generally. It also describes the impact of the attack on 28 June 2018 and the burden of the significant bail conditions that were in place for a long period.

Criminal history

24. The offender has a significant criminal history.

25. In 2003 he was given a suspended sentence of two and half years for two offences of assault occasioning actual bodily harm which were committed in 2000.

26. In 2005 he was convicted of failing to give information required under Commonwealth taxation law and fined.

27. In 2007 he was convicted of possessing methamphetamine and possessing anabolic steroids and given a 12 month good behaviour order. In 2007 he had a variety of driving related convictions which appear to have arisen from a single incident, which were dealt with by fines and disqualification.

28. In 2008 he was convicted of failing to file a statement of affairs in relation to his bankruptcy.

29. In 2009 he was convicted of possessing a replica pistol and knuckledusters and was fined.

30. In 2015 he was given a head sentence of one year and nine months’ imprisonment and a non-parole period of one year and two months for two counts of possessing, selling or supplying a drug of dependence. Later that year he was convicted of attempting to obtain a financial advantage by deception and sentenced to 9 months’ imprisonment.

31. In 2018 he was convicted of failing to lodge income tax returns.

32. He also has a variety of other driving convictions, a conviction for failing to vote and for obstructing or resisting a territory public official.

33. In New South Wales he has a single offence from 2002 of stating a false name or address, which was dealt with by fine.

Comparable cases

34. The Crown provided a schedule of cases which it said were comparable. Those related both to possessing firearms and possessing prohibited weapons. Of most significance are those cases relating to contraventions of s 43 of the Firearms Act.

35. The relevant cases were Mitchell, Smith-Roberts v Alexander [2014] ACTSC 239 (Smith-Roberts), R v Taylor [2015] ACTSC 122 (Taylor), R v Okwechime [2015] ACTSC 129 (Okwechime) and R v Massey [2018] ACTSC 221 (Massey).

36. The decision in Mitchell is not really comparable as it related to possession of 11 firearms and hence the maximum penalty was 20 years’ imprisonment, rather than five years’ imprisonment. However, it is notable that the custodial sentence ultimately imposed for that offence, and some others, was wholly suspended.

37. In each of the other cases custodial sentences were imposed, ranging from two months’ imprisonment up to 18 months’ imprisonment. The sentences were imposed in the context of the offenders being sentenced for a range of other offences involving custodial penalties.

38. In Smith-Roberts the sentence of 18 months was imposed upon a person who had possession of a .357 calibre revolver which was loaded. At the time of the offending he was serving a partially suspended sentence for the same offence.

39. Taylor involved a less serious firearm but a sentence was imposed in the context of other significant custodial sentences with which the firearms sentence was wholly concurrent.

40. Okwechime involve possession of an air rifle by a person with an extensive criminal history who was “heavily recorded for possession of firearms and other weapons offences”. The sentence of eight months, reduced from 10 months on account of the plea of guilty, was imposed amongst a number of other custodial sentences and was wholly concurrent with the other sentences imposed.

41. Massey involved a soft air pistol which fired non-metal bullets. The sentence of two months’ imprisonment was imposed along with a number of other relatively short custodial sentences, adding one month to the total sentence.

42. The cases involving possession of prohibited weapons disclosed penalties ranging from four months’ imprisonment to fines. Sentences of imprisonment were imposed in the context of custodial sentences for more significant offending.

Consideration

43. Counsel for the offender submitted that the firearms offence could be dealt with by way of a non-conviction order. He referred to the circumstances in which the firearm was possessed and the manner in which it was stored. He pointed to the decisions in R v Hogan [2014] ACTSC 254 and Shumack v Lyddiard [2007] ACTCA 3 as examples of cases in which offences under the Firearms Act were dealt with by way of non-conviction orders. I do not consider that those cases are relevantly comparable or that, having regard to the matters in ss 17(3)–(4) of the Crimes (Sentencing) Act 2005 (ACT), it would be appropriate to dispose of the Firearms Act charge in this case under s 17. Dealing with those factors in turn:

(a) The offender’s antecedents in the form of his criminal history does not support the making of such an order. He has a significant and varied criminal history.

(b) The seriousness of the offence is such that it would tell strongly against the making of an order under s 17.

(c) There were no relevantly extenuating circumstances in which the firearm was possessed. While it had been used in the course of self-defence from a violent and dangerous attack perpetrated by members of the Comanchero outlaw motorcycle gang, the offender had the opportunity to surrender the item to police when he was asked about the weapon, but chose not to.

44. Section 17(4) permits the court to take into account anything else that it considers relevant. There is nothing else about the circumstances which I consider would make it appropriate to deal with the matter without a conviction.

45. Counsel for the offender submitted that, notwithstanding that the offender had been found by the author of the pre-sentence report to be unsuitable for community service, under s 89(5) of the Crimes (Sentencing) Act it was open for the court to impose such a condition. He submitted that the offender’s continuing work history demonstrated that he would have the capacity to appropriately perform community service, notwithstanding his significant criminal history.

46. Counsel for the Crown submitted that the threshold for a custodial sentence in s 10 of the Crimes (Sentencing) Act had been passed and that the matter should be dealt with by way of a sentence of full-time imprisonment. While I agree that the s 10 threshold has clearly been passed, I do not agree that only a sentence of full-time imprisonment would be appropriate.

47. In this case punishment, specific and general deterrence, as well as rehabilitation are all significant sentencing considerations.

48. The offender has left the Comanchero motorcycle gang. There is evidence that he remains committed to his partner and his son. There is also evidence that was given by his partner at the trial that his commitment to his family was inconsistent with the offender returning to involvement in the activities of outlaw motorcycle gangs. The reference from his father is very useful in explaining the reasons why he might have got involved in an outlaw motorcycle gang in the first place. One can only hope that the offender has learnt from his father’s errors and emphasises love over discipline in raising his son.

49. While some of his previous convictions have arisen during the period of his involvement with the activities of outlaw motorcycle gangs, he also has an unfortunate history prior to that of possession of a replica firearm and knuckledusters as well as driving, assault, drug and bankruptcy related offences. His criminal history indicates that there is a significant ongoing need for specific deterrence. However, there is also a real prospect that ageing and starting a family are matters which will lead him away from not only the culture of outlaw motorcycle gangs, but also from lack of respect for the law.

50. Clearly there is the opportunity for the offender to seek to conduct himself lawfully for the benefit of his partner, his son and his parents. With the benefit of the information about his background, there appear to be better than reasonable prospects of him securely establishing himself as a law-abiding citizen. However, that hope must be tempered with caution having regard to his criminal history, his history of involvement with an outlaw motorcycle gang and the serious nature of the current offending.

51. As I have indicated above, the pattern of sentencing for the possession of firearms in the Territory is not such as to compel, in a case like this, the service of a period of full-time detention. Rather, in my view, the purposes of sentencing will be properly served if there is strong reinforcement of the progress towards rehabilitation that the evidence discloses. It is very much in the long-term interests of the community that people who have left the destructive culture of outlaw motorcycle gangs are, if they are capable, given an opportunity to re-establish themselves as law-abiding citizens. In the circumstances of this case, that can be achieved by a wholly suspended sentence of imprisonment.

52. In relation to the firearms offence, I consider that a sentence of nine months’ imprisonment is appropriate. It will be served by way of a fully suspended sentence, conditional upon the offender being of good behaviour for a period of 30 months. In my view, it is also appropriate to impose a requirement to perform a period of community service, notwithstanding the indication of unsuitability recorded by the author of the pre-sentence report. The reason for that is that the offender has a history of continuing employment and a capacity to conduct himself in a lawful manner. His criminal history is not such as to preclude the capacity to perform appropriate community service work. Notwithstanding the injury suffered on 28 June 2018, he is otherwise in good physical health and able to perform such work. The performance of such community service work will combine appropriate components of both punishment and rehabilitation.

53. In relation to the prohibited weapons charge, this may be dealt with by way of a fine and a good behaviour order. The ammunition charge will be disposed of by fine.

54. The orders of the Court are:

55. On the charge of unauthorised possession of a firearm (CC2018/9987) the offender is convicted and sentenced to imprisonment for nine months, which sentence is to be wholly suspended upon the offender giving an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 30 months with:

(a) A probation condition for two years or such lesser period as is determined by the Director-General.

(b) A condition that he perform 100 hours of community service within 12 months.

2. On the charge of unauthorised possession of a prohibited weapon (CC2018/9989) the offender is convicted and fined $2000 with three months to pay and required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months with a probation condition for 12 months or such shorter period as is determined by the Director-General.

3. On charge CC2018/9988 the offender is convicted and fined $500 and allowed one month to pay.

I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date: 29 September 2020